Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P5 ppt

a personality disorder, are likely to engage in predatory acts of sexual violence. Kansas invoked the act in committing an inmate who had a long history of sexually molesting children and who was scheduled for release from prison shortly after the act became law. In a 5–4 decision written by Associate Justice CLARENCE THOMAS, the Court rejected arguments that someone can be confined to a mental institution only if the person has been diagnosed with a mental illness. The Court also rejected arguments that the Kansas law violated the DOUBLE JEOPARDY provision of the FIFTH AMENDMENT to the U.S. Constitution, even though, under the law, persons who are first imprisoned for a sex crime may be institution- alized again when their criminal sentence has been served, based on some of the same evidence that had been used to convict them. The Kansas law created a civil commitment procedure that would result in confinement in a mental hospital, the Court said, and the protection against double jeopardy is only triggered by subsequent criminal punishments and prosecutions. The U.S. Supreme Court’sdecisionwas hailed by Kansas and the 38 other states that hadurgedthejusticestoupholdthelaw. However, defense lawyers, civil libertarians, and mental health professionals warned that the decision might allow states to lock up convicts who are not truly dangerous to society. In effect, said several mental health experts, the ruling misuses mental hospitals for punishment pur- poses, singling out one category of violent criminal for unlimited INCARCERATION without the safeguards a fforded to criminal defendants in the BILL OF RIGHTS. Dissenting justices echoed these sentiments in Hendricks, writing that while they agreed in principle with the idea that states may confine sexual predators who are deemed to be mentally abnormal, in this case it appeared that Kansas had not tried to treat the mental problems of the convict whose case was before the court. As a result, they wrote, his institution- alization functioned more like a punishment, and, therefore, it was unconstitutional. Although 20 states have laws authorizing civil commitment for sexual predators, courts in many of those states have been highl y circumspect in applying them. For example, the Iowa Supreme Court ruled that the state could not commit a prison er, who was s erving a criminal sentence for operating a motor vehicle without the owner’ sconsent,asa sexually violent predator, even though the prisoner had been convicted for sexually violent offenses in the past ( In re Detention of Gonzales, 658 N.W.2d 103 [Iowa 2003]). The prisoner was not confined for a sexually violent offense at the time that state filed its petition for commitment. Further, the state failed to prove, or even to allege, a recent OVERT ACT that met the statutory definition for being a sexual predator.TheIowaSupremeCourt reasoned that it would n ot be just or reason- able “to allow the state to reach back in time, seizeonasexuallyviolentoffenseforwhicha defendant was discharged, and couple this with a present confinement for a totally differen t offense—or,perhaps,atrivialone—and use the Sexually Violent Predator Act to confine the person .” In other jurisdictions, federal courts have been asked to intervene and invalidate state laws governing the procedures by which repeat sex offenders are committed following release from prison. In 2007, for example, the Mental Hygiene Legal Se rvice (MHLS) filed a DECLARATORY JUD GMENT action attacking the constitutionality of New York’s Sex Offender Management and Treatment Act, which created a new legal regime for “sex offenders requiring civil commitment or supervision .” Mental Hygiene Law (10.01 et seq. Section 10.06) authorized involuntary civil detention pending the commitment trial, based on a finding at the PROBABLE CAUSE hearing that the individual may have a mental abnormality. Section 10.07 of the law authorized civil commitment for a person who had been found incompetent to stand trial but had never been convicted of a sexual offense in a criminal proceeding, so long as in a civil commitment hearing the state made a showing by clear and convincing evidence that the person was guilty of a sexual offense. The U.S. district court for the Southern District of New York struck down both provisions as unconstitutional. Section 10.06 was unconstitu- tional, the court ruled, because it permitted civil detention pending trial based on a finding of mental abnormality without an individualized finding of current dangerousness. Section 10.07 was unconstitutional, the court declared, be- cause it allowed detention of individuals absent a finding BEYOND A REASONABLE DOUBT that such individuals committed the acts that constituted the crime for which they had been charged GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 28 COMMITMENT (Mental Hygiene Legal Serv. v. Spitzer, 2007 WL 4115936 [S.D.N.Y. Nov. 16, 2007]). Courts have also been asked to review the constitutionality of laws authorizing the civil detention of juvenile sex offenders. These laws have been usually upheld, at least when applied to situations in which the state seeks to commit a juvenile offender to a juvenile sex-offender facility while he or she is still a juvenile. The commitment proceedings grow more contro- versial when the state seeks to use a sex offense the person committed while still a juvenile as one reason to justify civil detention of that person after he or she commits a sexually violent offense as an adult. On the one hand, a juvenile’s criminal records are protected from disclosure as confidential in most jurisdictions, and using those records during an adult civil commitment proceeding would seem to violate that confidentiality. On the other hand, state officials argue that persons who commit SEX OFFENSES when they are juveniles present a serious risk to society because they have more years in which to commit repeat offenses than do older, adult offenders. Only a few courts have ruled on whether records of juvenile sex offenses may be admissible during an adult civil commitment proceeding, but courts that have made such rulings generally have allowed their admission. A Pennsylvania Superior Court ruled that an adult defendant’s juvenile history was admissi- ble to establi sh that an adult defendant, who pleaded NOLO CONTENDERE to aggravated indecent ASSAULT and corruption of minors, was a sexually violent predator. The defendant had been almost continuously committed to mental health and juvenile detention facilities through- out his teenage years, the court observed, and records from those facilities documented re- peated instances of inappropriate sexual and physical outbursts. Finally, the court noted that the defendant had not benefited from the sex offender treatment he had undergone as a juvenile or as an adult. The court concluded that the probative value of this evidence was too compelling for it to ignore (Commissioner v. Woods, 909 A.2d 372 [2006]). Two years later, a Kansas court reached the same conclusion (In re Colt, 39 Kan.App.2d 643, 183 P.3d 4 [2008]). Because several legal commentators have ques- tioned these outcomes, however, the law in this area is still very fluid . FURTHER READINGS Haycock, Joel, et al. 1994. “Mediating the Gap: Thinking about Alternatives to the Current Practice of Civil Commitment.” New England Journal on Criminal and Civil Confinement 20. James, Nathan, and Kenneth R. Thomas. 2008. Civil Com- mitment of Sexually Dangerous Persons. Hauppauge, NY: Nova Science Publishers, Inc. Miller, Robert D. 1987. Involuntary Civil Commitment of the Mentally Ill in the Post-Reform Era. Springfield, IL: Thomas. Parry, John. 1994. “Involuntary Civil Commitment in the Nineties: A Constitutional Perspective.” Mental and Physical Disability Law Reporter 18. Winick, Bruce J. 1999. “Therapeutic Jurisprudence and the Civil Commitment Hearing.” The Journal of Contem- porary Legal Issues 10. CROSS REFERENCES Guilty; Patients’ Rights. COMMITMENT FEE Compensation paid to a lender by a borrower for the lender’s promise to give a mortgage at some future time. A COMMITMENT FEE, frequently employed in REAL ESTATE transactions, is an expense separate from interest charged on the loan to be secured by the mortgage. The controversy surrounding nonrefundable commitment fees arises when a borrower decides not to proceed with the loan and then demands return of the fee on the premise that the lender has performed no services to earn it. The courts have consistently rejected this contention and held that the lender is entitled to the commitment fee either as LIQUIDATED DAMAGES for breach of contract or as compensation for earmarking the funds for loan to the borrower. COMMITTEE An individual or group of people to whom authority has been delegated by a larger group to perfor m a particular function or duty. A part of a legislative body made up of one or more individuals who have been assigned the task of investigating a certain issue and reporting their observations and recommendations to the legis- lature. The Senate has various committees, such as the Committee on Nuclear E nergy. T he name given to the person or group of people appointed by a court and charged with the r esponsibility of acting as the guardian of an incompetent person. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COMMITTEE 29 COMMODITY A tangible item that may be bought or sold; something produced for commerce. Commodities are defined as marketable goods or wares, such as raw or partially processed materials, farm products, or jewelry. Intangibles, such as human labor, services, or advertising, are generally not considered to be commodities. COMMODITY CREDIT CORPORATION The COMMODITY CREDIT CORPORATION (CCC) is a federal agency that was established to stabilize and protect farm income and prices; to assist in the maintenance of balanced and sufficient supplies of useful or serviceable agricultural goods, especially articles of merchandise mov- able in trade; and to promote the orderly distribution of such products. It was organized on October 17, 1933, pursuant to an EXECUTIVE ORDER , as an agency of the United States. From October 17, 1933, to July 1, 1939, the CCC was managed and operated in close affiliation with the Reconstruction Finance Corporation. On July 1, 1939, it was transf erred to the AGRICULTURE DEPARTMENT under a presi- dential REORGANIZATION PLAN. Adoption by Con- gress of the Commodity Credit Corporation Charter Act on June 29, 1948, established the CCC as an agency and instrumentality of the United States under a permanent federal charter. The CCC is managed by a board of directors and is subject to the general supervision and direction of the secretary of agriculture, who is an EX OFFICIO director and chairperson of the board. The board consists of seven members (in addition to the secretary of agriculture) who are appointed by the PRESIDENT OF THE UNITED STATES by and with the ADVICE AND CONSENT of the Senate. The CCC does not have operating person- nel. In carrying out its principal operations, the CCC utilizes the personnel and facilities of the Farm Service Agency (FSA) and, in certain foreign trade operations, the Foreign Agricul- tural Service. A commodity office in Kansas City, Missouri, has specific responsibilities concerned with the disposal (through donation, sale, or transfer) of designated commodities and products held by the CCC. Commodity Stabilization The CCC administers commodity loan pro- grams, which are part of the price supp ort system that has dominated U.S. agriculture since the 1930s. Farmers who agree to limit their production of specially designated crops can sell them to the CCC or borrow money at support prices. The CCC manages loan pro- grams for wheat, corn, rice, grain sorghum, barley, oats, oilseeds, tobacco, peanuts, cotton, and sugar. Commodities acquired under the stabiliza- tion program are disposed of through domestic and export sales, transfers to other government agencies, and donations for domestic and foreign welfare use. The CCC is also authorized to exchange surplus agricultural commodities acquired by the CCC for strategic and other materials and service s produced abroad. Support Programs Under PUBLIC LAW 480, the Agricultural Trade Development and Assistance Act of 1954, as amended (7 U.S.C.A. §§ 1691 et seq.), the CCC carries out other assigned activities. Along with providing domestic assistance to schools, hospitals, and NONPROFIT organizations, major emphasis is directed toward meeting the needs of developing nations. Under the Food for Peace Act of 1966, which further amends the Agricultural Trade Act of 1954, agricultural commodities are procured and exported to combat hunger and malnutrition and to encourage economic improvement in develop- ing countries. The CCC is also involved in environmental issues. In 2000 the Agriculture Department implemented a two-year, $300 million incentive program designed to encourage increased production of biofuels (environmentally-friendly fuels) such as ethanol and soy-based biodiesel. As a result, the CCC provided cash incentives to bioenergy producers who increase their pur- chase of eligible agricultural commodities to expand production of ethanol, biodiesel, and other biofuels. Eligible commodities include barley, corn, grain sorghum, oats, rice, wheat, soybeans, and many seed crops. FURTHER READINGS Commodity Credit Corporation. Available online at http:// www.fsa.usda.gov/ccc/default.htm (accessed May 16, 2009). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 30 COMMODITY United States Department of Agriculture. Available online at http://www.usda.gov (accessed May 16, 2009). CROSS REFERENCES Agricultural Law; Agriculture Subsidies COMMODITY FUTURES TRADING COMMISSION The federal regulatory agency for FUTURES trading, the CFTC was established by the COMMODITY FUTURES TRADING COMMISSION Act of 1974 (88 Stat. 1389; 7 U.S.C.A. 4a), approved October 23, 1974. The commission began operation in April 1975, and Congress renewed its authority to regulate futures trading in 1978. Its authority was again renewed with the Commodity Futures Modernization Act of 2000, which also mandated major reforms of the commission. The CFTC maintains a com- prehensive Website at http://www.cftc.gov. The Commodity Futures Trading Commis- sion (CFTC) consists of five commissioners who are appointed by the president with the ADVICE AND CONSENT of the Senate. The commis- sioners serve staggered five-year terms, and by law no more than three commissioners can belong to the same political party. One commissioner is designated by the president to serve as chair. The chair’s staff includes the Office of the Inspector General and the Office of International Affairs. To comply with the requirements of the Modernization Act, the commission underwent a restructuring in 2002. As a result, it consists of six major operating units: the Division of Clearing and Intermediary Oversight, the Divi- sion of Market Oversight, the Division of Enforcement, the Office of the Chief Econo- mist, the Office of the General Counsel, and the Office of the Executive Director. The CFTC regulates trading on the 11 U.S. futures exchanges, which offer numerous kinds of futures contracts. It also regulates the activities of some 3,000 commodity exchange members, 360 public brokerage houses (futures commission merchants), about 38,000 commission-registered futures industry salespeople and associated persons, and 2,500 commodity trading advisers and commodity pool operators. Some off- exchange transactions involving instruments similar in nature to futures contracts also fall under CFTC jurisdiction. The commission’s regulatory and enforce- ment efforts are designed to ensure that the futures trading process is fair and that it protects both the rights of customers and the financial integrity of the marketplace. The CFTC approves the rules under which an exchange proposes to operate and monitors exchange enforcement of those rules. It reviews the terms of proposed futures contracts and registers companies and individuals who handle customer funds or give trading advice. The commission also protects the public by enfor- cing rules that require customer funds to be kept in bank accounts separate from accounts maintained by firms for their own use and that such customer accounts be marked to present MARKET VALUE at the close of trading each day. Futures contracts for agricultural commod- ities were traded in the United States for more than one hundred years before futures trading was diversified to include trading in contracts for precious metals, raw materials, foreign currencies, commercial interest rates, and U.S. government and mortgage securities. Contract diversification has grown in exchange trading volume, a growth not limited to the newer commodities. The CFTC maintains large regional offices in Chicago and New York, cities in which eight of the nation’s 11 futures exchanges are located. Smaller regional offices are located in Kansas City and San Francisco, and there is a suboffice of the Chicago regional office in Minneapolis. As of 2009, the CFTC was considering regulations to curb speculation in energy commodities markets, following 2008’s gross swings in oil prices, which many experts have attributed to the actions of greedy traders. One proposal would limit the size of an investment in a given commodity by a single ENTITY. FURTHER READINGS Commodity Futures Trading Commission. FY 2010 Pre- sident’s Budget and Performance Plan. Available online at http://wwcftc.gov/aboutthecftc/cftcreports.html. Commodity Futures Trading Commission. Keeping Pace with Change: Strategic Plan of the Commodity Futures Trading Commission 2007–2012. Available online at http://wwcftc.gov/aboutthecftc/cftcreports.html. Commodity Futures Trading Commission. Performance and Accountability Report, November 2008. Available online at http://wwcftc.gov/aboutthecftc/cftcreports.html. Goldfarb, Zachary A. 2009. “CFTC Floats Rules Aimed at Speculation;” Washington Post (July 7). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COMMODITY FUTURES TRADING COMMISSION 31 COMMON Belonging to or pertaining to the general public. Common lands, also known as public lands, are those that are set aside for use by the community at large, such as parks and public recreation areas. Common also means habitual or recurring, such as offenses that are committed frequently or repeatedly. A common thief is one who has been repeatedly convicted of larceny. Some thing that is common is owned equally by two or more people, such as a piece of land. A tenancy in common is an interest in land wherein at least two people share ownership. COMMON CARRIER An individual or busines s that advertises to the public that it is available for hire to transport people or property in exchange for a fee. A COMMON CARRIER is legally bound to carry all passengers or freight as long as there is enough space, the fee is paid, and no reasonable grounds to refuse to do so exist. A common carrier that unjustifiably refuses to carry a parti- cular person or cargo may be sued for damages. The states regulate common carriers engaged in business within their borders. When interstate or foreign transportation is involved, the federal government, by virtue of the COMMERCE CLAUSE of the Constitution, regulates the activities of such carriers. A common carrier may establish reasonable regulations for the efficient operation and maintenance of its business. COMMON COUNCIL In English legal history, the name given to Parliament. In the U.S. legal system, the legislative body of a city or of a municipal corporation. COMMON COUNT A traditional type of common-law pleading that is used in actions to recover a debt of money of the defendant based upon an express or implied promise to pay after performance had been rendered. In a common-count pleading, the plaintiff sets forth in account form the facts that constitute the basis of his or her claim, such as money had and received and goods sold and delivered. Common counts were once used to allege the grounds for actions of assumpsit, a COMMON- LAW ACTION for the recovery of money ow ed by a DEFENDANT to the PLAINTIFF. The four classes of common counts were (1) the indebitatus count; A man hails a cab in New York’s Times Square. A taxi is considered a common carrier and, as such, is regulated by the state in which it operates. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 32 COMMON (2) the QUANTUM MERUIT count; (3) the quantum vabelant count; and (4) the ACCOUNT STATED count. The generalized nature of common counts enabled a plaintiff to take advantage of any ground of liability for which proof was available within the limits of the action of assumpsit. This is in contrast to special counts within which a plaintiff had to state a particular claim or be denied relief. Common counts are no longer used for PLEADING purposes but have been replaced by complaints according to the Federal Rules of CIVIL PROCEDURE and state codes of civil procedure. COMMON DISASTER A set of circumstances in which two individuals die apparently simultaneously. In a COMMON DISASTER there is no certainty of who died first, an important issue that fre- quently arises in the determination of the INHERITANCE of property or the distribution of proceeds of a life insurance policy. The common disaster clause found in insur- ance policies and wills is a provision that names an alternate BENEFICIARY in the event that the testator and LEGATEE or the insured and the beneficiary die simultaneously. SIMULTANEOUS DEATH acts are state laws that provide for the disposal of property in the event of a common disaster. COMMON LANDS An archaic designation of property set aside and regulated by the local, state, or federal government for the benefit of the public for recreational purposes. COMMON LANDS established by the Federal government are known as PUBLIC LANDS. COMMON LAW The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the co urts. The general body of statutes and case law that governed England and the American colonies prior to the American Revolution. The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals. A designation used to denote the opposite of statutory, equitable, or civil, for example, a common-law action. The common-law system prevails in Eng- land, the United States, and other countries colonized by England. It is distinct from the civil-law system, which predominates in Europe and in areas colonized by France and Spain. The common-law system is used in all the states of the United States except Louisiana, where French CIVIL LAW combined with English CRIMI- NAL LAW to form a hybrid system. The common- law system is also used in Canada, except in the Province of Quebec, where the French civil-law system prevails. Anglo-American COMMON LAW traces its r oots to the medieval idea that the law as handed down from the king’s courts represented the common custom of the people. It evolved chiefly from three English Crown courts of the twelfth and thirteenth centuries: the Exchequer, the King’s Bench, and the COMMON PLEAS.Thesecourts eventually assumed jurisdiction over disputes previously decided by local or manorial courts, such as baronial, admiral’s (maritime), guild, and forest courts, whose jurisdiction was limited to specific geographic or subject matter areas. EQUITY courts, which were instituted to provide relief to litigants in cases where common-law relief was unavailable, also merged with COMMON- LAW COURTS. This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system. Early common-law procedure was governed by a complex system of PLEADING, under which only the offenses specified in authorized writs could be litigated. Complainants were required to satisfy all the specifications of a WRIT before they were allowed access to a common-law court. This system was replaced in England and in the United States during the mid-1800s. A streamlined, simplified form of pleading, known as CODE PLEADING or notice pleading, was instituted. Code pleading requires only a plain, factual statement of the dispute by the parties and leaves the determination of issues to the court. Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COMMON LAW 33 governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges rely on their predeces- sors’ decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in LAW REPORTS , which contain decisions of past controversies. Under the doctrine of STARE DECISIS , common-law judges are obliged to adhere to previously decided cases, or pre- cedents, where the facts are substantially the same. A court’sdecisionis BINDING AUTHORITY for similar cases decided by the same court or by lower courts within the same jurisdiction. The d ecision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be consid ered as PERSUASIVE AUTHORITY. Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of FIRST IMPRESSION (previously undetermined legal issue). The com- mon-law system allows judges t o look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows com- mon law to deal with changes that lead to unanticipated controversies. At the same time, stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment. Under a common-law system, disputes are settled through an adversarial exchange of arguments and evidence. Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favor of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of fact. Under common law, all citizens, including the highest-ranking officials of the government, are subject to the same set of laws, and the exercise of government power is limited by those laws. The judiciary may review legislation, but only to determine whether it conforms to constitutional requirements. FURTHER READINGS Cantor, Norman F. 1997. Imagining the Law: Common Law and the Foundations of the American Legal System. New York: HarperCollins. Kellogg, Frederic R. 2003. “Justice Holmes, Common Law Theory, and Judicial Restraint.” John Marshall Law Review 36 (winter). Pound, Roscoe. 2008. The Spirit of the Common Law (1921). Whitefish, MT: Kessinger. Strauss, David A. 2003. “Common Law, Common Ground, and Jefferson’s Principle.” Yale Law Journal 112 (May). Available online at http://yalelawjournal.org/112/7/ 1717_david_a_strauss.ht ml; website home page: http://yalelawjournal.org (accessed July 14, 2009). CROSS REFERENCES Adversary System; Engli sh Law. COMMON-LAW ACTION A lawsuit governed by the general principles of law derived from court decisions, as opposed to the provisions of statutes. Actions ex contractu, arising out of a breach of contract, and actions ex delicto, based upon the commission of a tort, are common-law actions. COMMON-LAW COURTS The early royal courts in England that adminis- tered the law common to all. For a time after the Norman Conquest of England in 1066, the king himself sat to hear cases involving royal interests and the court was called CORAM REGE (Latin for “before the king”). When the king began delegating authority to administer justice, the tribunal he appoin ted was called CURIA REGIS, the King’s Court. Out of the Curia Regis came the three royal COMMON- LAW COURTS. The first offshoot was the Exche- quer, which originally collected taxes and administered the king’s finances, but by 1250 was exercising full powers as a court. Next to develop as a separate court was COMMON PLEAS,a court probably established by Henry II during the latter half of the twelfth century to hear cases not involving the king’s rights. The remaining part of the Curia Regis reviewed decisions of the Common Pleas by issuing writs of error. This court, later known as the King’s Bench, also heard cases involving the king’s interests, particularly criminal matters and cases involving high noblemen. For many years the work of the court was written as if proceedings before it were before the king himself. The common-law courts competed with the CHAN- CERY , which exercised EQUITY jurisdiction, and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 34 COMMON-LAW ACTION their struggles shifted the division of authority at various times. They were consol idated with the other high courts of England by the JUDICATURE ACTS in the late nineteenth century. CROSS REFERENCES Law “Common-Law Courts” (Sidebar). COMMON-LAW MARRIAGE A union of two people not formalized in the customary manner as prescribed by law but created by an agreement to marry followed by cohabitation. A fundamental question in MARRIAGE is whether the union is legally recognized. This question is important because marriage affects property ownership, rights of survivorship, spousal benefits, and other marital amenities. With so much at stake, marriage has become a matter regulated by law. In the United States, the law of marriage is reserved to the states and thus governed by state law. All states place restrictions on marriage, such as age requirement s and the prohibition of intrafamilial marriage. Further, most states recognize marriage only upon completion of specified procedures. A typical statute requires a witnessed ceremony solemnized by a lawfully authorized person, submission to blood tests, and fulfillment of license requirements. How- ever, in some states, the marital union of a man and a woman can still be achieved in the most simple, time-honored ways. History Marriage has evolved over the centuries, but some basic features have remained constant. In ancient Rome, it was accomplished by consent of the parties to live together. No forms were required, and no ceremony was necessary. This early Roman model of marriage was displaced when the Catholic Church declared in 1563 that marriages were not valid unless contracted in the presence of a priest and two witnesses. In England, under the Anglican Church, marriage by consent and COHABITATION was valid until the passage of Lord Hardwicke’s Act in 1753. This act instituted certain requirements for marriage, including the performance of a religious ceremony observed by witnesses. The American colonies rejected the require- ment of a religious ceremony but retained the custom of a ceremony, religious or otherwise. The ancient Roman concept of marriage by agreement and cohabi tation was adopted by early American courts as valid under the COMMON LAW. In the 1800s state legislatures began to enact laws expressly to prohibit marriage without an observed ceremony and other requirements. COMMON-LAW MARRIAGE was pro- hibited in a majority of jurisdictions. However, the FULL FAITH AND CREDIT CLAUSE of the U.S. Constitution requires all states that prohibit it to nonetheless recognize a common-law mar- riage created in a jurisdiction that allows it. U.S. Const. art. IV, § 1. Laws in all states require a common-law spouse to obtain a DIVORCE before remarrying. Common-law marriage is allowed in four- teen jurisdictions: Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and the District of Columbia. The manner in which a state authorizes common-law mar- riage varies. Pennsylvania maintains a statute that declares that the statutory chapter covering licensed marriage does not affect the recogni- tion of common-law marriage (23 Pa. Const. Stat. Ann. § 1103). In Georgia, the operative marriage statute simply states, “To constitute a valid marriage in this State there must be—1. Parties able to contract; 2. An actual contract; 3. Consummation according to law” (Ga. Code Ann. § 19-3-1). Several reasons have been offered for recognizing common-law marriage. In some states, including Pennsylvania and Rhode Island, common-law marriage was originally permitted to allow for religious and social freedom. Some state legislatures have noted the private impor- tance of marriage and assailed the insensitivity of governments purporting to regulate such a personal matter. Other states have been reluc- tant to require licensing and ceremony in consideration of the financial hardship such requirements impose on poor citizens. Features A common-law marriage has three basic features. When a common-law marriage is challenged, proof of the following elements is critical in most jurisdictions. 1. A present agreement to be married. The parties must announce to each other that they are GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COMMON-LAW MARRIAGE 35 married from that moment forward. Specific words are not mandated, but there must be evidence of an agreement to be married. Proof may consist of CIRCUMSTANTIAL EVIDENCE, including evidence that the partners have cohabitated and held themselves out to the public as being married. However, neither cohabitation nor a public holding out constitutes sufficient proof to establish the formation of a common-law marriage, either by themselves or taken together. An agree- ment to marry must be proved by the party asserting marriage. 2. Cohabitation. The parties must actually live together in order to support a claim of common-law marriage. Whether m ainte- nance of a separate home by one of the parties will nullify a common-law marriage is a QUESTION OF FACT and depends on the circumstances of the particular case. 3. Public representations of marriage. The couple must consistently hold themselves out to the public as married. A married couple is expected to tell people that they are married. They should also file joint tax returns and declare their marriage on other documents, such as applications, leases, and b irth certificates. Legal Applications A challenge to a common-law marriage can come from a variety of sources. For example, an insur- ance carrier or pension provider may contest a common-law marriage when one spouse claims benefits by virtue of the marriage. Often, it is one of the purported spouses who challenges the existence of a common-law marriage. In Flores v. Flores, 847 S.W.2d 648 (Tex. App. Waco 1993), Peggy Ann Flores sought to prove that she had been married by common law to Albert Flores. Peggy and Albert were married in a ceremony on July 18, 1987, and divorced on March 9, 1989. They continued to live together until November 1990, when Albert moved away to live with his girlfriend, Lisa. Albert and Lisa were married on January 1, 1991. Peggy filed for a second divorce from Albert on January 31, 1991. In the same proceeding, she applied for custody of their child, Joshua, and CHILD SUPPORT payments from Albert. The County Court, Brazos County, found that a common-law marriage had existed between Peggy and Albert following their 1989 divorce. The county court granted the second divorce and ordere d custody and child support pay- ments to Peggy. Albert appealed, arguing in part that there was insufficient evidence to support a finding both that Peggy and Albert had agreed to remarry and that Peggy and Albert had represented to others that they were married. The Court of Appeals of Texas, Waco, agreed with Albert. The court of appeals opened its opinion by listing the important factual background. According to Peggy’s testimony at the 1991 divorce proceeding, she had considered herself married to Albert after the 1989 divorce, and Albert had, on one occasion, introduced her as his wife after the 1989 divorce. Peggy’s employer, Irma Ortega, testified that she did not kno w of the first divorce, that Albert sent gifts and affectionate notes to Peggy, and that Peggy kept a picture of Albert and Joshua at her workplace. Relatives of both Peggy and Albert testified that after the 1989 divorce, the relationship continued much as it had before. Other testimony revealed that on a visit to a hospital after the divorce, Peggy told hospital personnel that she was single. Albert and Peggy signed a LEASE together that did not specify their relationship. Peggy used Albert’s credit cards, and Albert paid the rent and other bills. Peggy and Albert also maintaine d a joint bank account and carried on a sexual relationship. Albert testified that Peggy had asked him to stay with her until she got “back on her feet.” He also testified that he had moved in with Peggy after the 1989 divorce to help her and that he had informed Lisa that he was living with his former wife “and helping her out. ” The court of appeals then addressed whether these facts sufficed to establish a common law marriage in Texas. The court said that while the facts must demonstrate cohabitation by t he parties, public representations of marriage by the parties, and an agreement to be married, all three elements need not exist simultaneously for a common-law marriage to exist. On the issue of whether the couple had agreed to be married again after the 1989 divorce, the court acknowledged that such an agreement can be inferred from cohabitation. However, the court warned that cohabitation is more common than it once was and that cohabitation evidence should be weighed more carefully than it has been in the past. After an GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 36 COMMON-LAW MARRIAGE examination of the record, the court concluded that there was no DIRECT EVIDENCE of an agreement between Albert and Peggy to marry. The evidence showing that Albert and Peggy had lived together and shared resources did not compel a finding of an agreement to be married. Nor did the evidence support a finding that Peggy and Albert had held themselves out as married. According to the court of appeals, one public representation of marriage did not constitute a public holding out. Other evidence offered by Peggy, such as the joint bank account, was insufficient to support public holding out, the court found. Thus, the court of appeals ultimately reversed the judgment of the county court and ordered that Peggy take nothing but child support payments from her suit. Late Twentieth-Century Developments During the last 15 years of the twentieth century a growing number of states, counties, and municipalities granted qualified legal recogni- tion to unmarried “domestic partners.” Known in some jurisdictions as “reciprocal benefici- aries,” unmarried couples who receive legal recognition as domestic partners may be eligible for HEALTH INSURANCE benefits, life insurance benefits, and child VISITATION RIGHTS. Depending on the jurisdiction, domestic partners may also be entitled to hospital visitation rights. However, in most jurisdictions domestic partners may only inherit from their partners or their partner’s family if they are specifically named in the deceased’s will. A few states allow domestic partners to inherit from each other or each other’s family in the absence of a will, called INTESTATE SUCCESSION. By contrast, the law of all states that recognize common-law mar- riage allow both parties to the common–law marriage to inherit under state INTESTACY laws when either spouse dies without a will. Also unlike common-law marriages, domes- tic partners may not typically ask courts to settle their post-relationship property disputes. Nor may domestic partners petition courts for ALIMONY awards, unless the partners entered a formal agreement for palimony prior to their cohabitation. Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal. Rptr. 815 (Cal. 1976). But if partners do enter a palimony agreement, they will generally be enforced, unless during the period of cohabitation the partners resided in Illinois, Georgia, and Tennessee, the three states that have expressly refused to recognize palimony agreements. Every jurisdiction recognizing domestic partners as a legal ENTITY has its own list of formal requirements that unmarried couples must satisfy before they will be formally recognized as domestic partners. The formal requirements in no two jurisdictions are identical. However, most jurisdictions do share many of the same core requirements. These core requirements include that both partners must be older than 18 and unmarried, currently live together, apply together before a public official with authority to recognize them as domestic partners, and pay the related fees to be registered. To end a domestic partnership, most jurisdictions allow the couple simply to send a letter to the registrar of domestic partners. The letter must be dated and signed by both partners, and it must specifically request that the domestic partnership be terminated. Laws in eight states and more than 100 municipalities curre ntly provide legal recogni- tion for unmarried couples as domestic partners. This legislation often allows both opposite-sex and same-sex couples to form domestic partner- ships, unlike the states that recognize common- law marriage, none of which expressly permits homosexual common-law marriages, and some of which expressly prohibit it. Pursuant to state and local domestic-partner legislation, 157 For- tune 500 companies, 3,960 private employers and unions, and 158 COLLEGES AND UNIVERSITIES were as of mid-2003 providing benefits to domestic partners. Although no nationwide statistics exist, the 2000 CENSUS revealed almost 10,000 domestic partners were registered in St. Louis, Missouri, alone, and more than 15,000 same-sex couples were registered as domestic partners in California. FURTHER READINGS Jasper, Margaret C. 2001. Marriage and Divorce. 2d ed. New York: Oxford Univ. Press. Legalines on Domestic Relations—Keyed to Wadlington and O’Brien’s Cases and Materials. 2009. Eagan, MN: West. “Marriage Laws of the Fifty States, District of Columbia and Puerto Rico.” Legal Information Institute, Cornell Univ. Law School. Available online at http://topics.law.cornell. edu/wex/table_marriage; website home page: http:// topics.law.cornell.edu (accessed August 20, 2009). CROSS REFERENCES Circumstantial Evidence; Cohabitation; Domestic Partner- ship Law; Survivorship . GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COMMON-LAW MARRIAGE 37 . Where a statute GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COMMON LAW 33 governs the dispute, judicial interpretation of that statute determines how the law applies. Common -law judges rely. the past. After an GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 36 COMMON -LAW MARRIAGE examination of the record, the court concluded that there was no DIRECT EVIDENCE of an agreement between. the person or group of people appointed by a court and charged with the r esponsibility of acting as the guardian of an incompetent person. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COMMITTEE